Friday, July 30, 2004

So far in July, 43 American soldiers have died in Iraq from hostile fire, 8 from non-hostile action.
The press has not been covering the dead in Iraq, giving many Americans the impression that the situation there has quieted. Instead, they are focusing on Allawi's new government. In fact, the 51 dead so far in July ("so far" because Pentagon figures lag by days) exceeds the 41 killed in June. CNN keeps a running total at this web address, with regular Pentagon updates included (more than once daily, usually): http://www.cnn.com/SPECIALS/2003/iraq/forces/casualties/

So far, nearly 6,000 have been listed as wounded. The "wounded" figures are harder to assemble because the Pentagon only announces wounded soldiers in connection with an otherwise fatal attack. The rest must be pieced together from unofficial reporting.

Wow. Again, Wow. They let Kerry be Kerry, and it worked. Six lines stand out in my mind.
1. We have it in our power to change the world, but only if we're true to our ideals - and that starts by telling the truth to the American people. As president, that is my first pledge to you tonight. As president, I will restore trust and credibility to the White House.
2. Tonight, we have an important message for those who question the patriotism of Americans who offer a better direction for our country. Before wrapping themselves in the flag and shutting their eyes and ears to the truth, they should remember what America is really all about. . . The American flag belongs doesn't belong to any ideology or party, but to the whole American people.
3. I do not wear my religion on my sleeve, but my faith has helped me live from Vietnam to today, from Sunday to Sunday. We should not claim that God is on our side, but humbly pray that we are on God's side.
4. America should be energy independent. I want to rely on America's ingenuity and innovation, not the Saudi Royal family.
5. There are some who accuse me of seeing complexities, but some issues just aren't all that simple.
6. I want to address these next words directly to President George W. Bush: In the weeks ahead, let's be optimists, not just opponents. Let's build unity in the American family, not angry division. The high road may be harder, but it leads to a better place. And that's why Republicans and Democrats must make this election a contest of big ideas, not small-minded attacks.

Tears came to my eyes when I finally heard a major Democratic politician say that it is wrong for GWB to claim that God is on his side, and that it is wrong for him to accuse his critics of being unpatriotic.

My only criticism is that the opening line "Reporting for duty" was cheesy. Of course, when the Republicans open their convention we'll remember that nobody has a monopoly on cheesy. They'll have country music, after all. To be fair, outsiders should understand that cheesy moments play differently in person. I was present with a press pass at the 2000 convention, when Gore came on stage and kissed his wife Tipper in a rather deep kiss. It drew the crowd to its feet as the climax of an emotional frenzy. Really, the crowd in attendance looked on it as Gore finally shwoing his true colors in public. Only later, on television replays, did I see how bad it looked to the rest of the country.

Zogby America's poll of voters from July 26-29 is already out (During the convention but before Kerry's speech, reflecting mostly the news coverage of speeches by Clinton, Teresa H. Kerry, and Edwards). It shows the race breaking open for the first time in several months: Kerry 48, Bush 43. With Nader, the libertarians, and other third party candidates, figured in the breakdown is 46-41 -- looking more like the vote in '96 and '92. The more significant number, perhaps, is the "job approval" rating of Pres. Bush - 54 disapprove, 44 approve. This is the first poll showing a "convention bounce." We should expect a spate of such poll results to be released in the next week.

Historically, such a "bounce" has occurred after national nominating conventions. Dukakis actually led Bush Sr. with the bounce in 1988 (coming from behind, not a tie). The Republican convention bounce of August 1988 reversed the situation stuck through November. In 1992, the Clinton bounce was so huge that it was never overcome by the later Republican bounce. The main exception to the "bounce" rule has been Al Gore in 2000 - it took him from a slight 5 point deficit to a dead heat, where it stayed through election day, as we know.

Okay, someone explain this to me. Why is John Kerry being told he needs to pretend to be a Red Sox fan? First, he says his favorite player is "Manny Ortiz", mixing up Manny Ramirez and David Ortiz. (Kind of remins me of Mr. Burns wanting Mordecai "Three-finger" Brown on his baseball team§) Then he gets humiliated trying to throw out the first pitch at a Red Sox - Yankees game ... "trying" being the operative term. Can we stop the nonsense now? I know, he's trying to look less elite and more down-to-earth, but it's not working. Red Sox fans are among the most intelligent baseball fans out there; they know if you're a true fan or not. Plus, he's going to sweep New England anyway, right? And if anyone is going to vote for a candidate based on baseball ties, they'll vote for Bush. So give it up.

Monday, July 26, 2004

I got a chance to watch/listen to some of the speeches for the first night of the Democratic National Convention. Here are some of my reactions:

As expected Bill Clinton gave an amazing speech. Wow! He's great. The juxtaposition of the Democratic policies and the Republican policies was great. So was the "send me!" theme where he said that back in the 1960s a lot of men, "including the current President, the current Vice President and me...could have gone to Vietnam but didn't....John Kerry came from a privileged background he could have avoided it but instead he said, 'Send me!'" Great stuff. But I think the best part of Clinton's speech was when he said that the Republican party's policies are designed to concentrate wealth and power in the hands of the very few. And since most people don't really believe in that, the Republicans need to portray the Democrats as totally unacceptable. "They need a divided America. We don't!"

The best speech of the night was not, surprisingly enough, Bill Clinton's. Instead that honor belongs to a reverend Alston (an African American preacher who served on Kerry's swift boat in Vietnam). Actually, I have to give the edge to Clinton's speech with regard to issues but Alston won heavily on style points. The reverend was fantastic! He really had the crowd rockin'. His ringing endorsement of Kerry, the brave skipper was great.

Speaking of Navy men, Jimmy Carter gave a surprising speech. After being introduced as the house building, Nobel Prize winning saint in waiting, Carter gave a speech in which he alluded prominently to his own military service aboard nuclear submarines during the Truman and Eisenhower years. Carter made a strong point of saying that he and his shipmates had confidence that neither Truman nor Eisenhower (both of whom had served in war time overseas), would mislead them or send them into war needlessly. He made allusions to Kerry's "serving actively with honor" (pronouncing "honor" in a way that sounded more like Robert E. Lee and less like Bush) and "showing up for assigned duty." Carter alluded to human rights and the moral high ground on that issue that has been abandoned (a barely veiled allusion to Gitmo and Abu Gharib). It was clear he could barely contain his disgust for Bush. Which might partly explain why he is getting active in party politics again after so many years of staying away.

Gore's speech was hilarious. That guy is downright funny. "You win some, you lose some...and then there is that little known third category." Yet more evidence that Gore was "overhandled" by his campaign staff. I hope that is not happening with Kerry.

Overall the theme of the night was clear: JFK the heroic skipper of PT 109 - sorry, make that JFK the heroic skipper of PCF-94.

In other news: Theresa Heinz Kerry told a conservative editorialist to "shove it" because she believed he was misquoting her and accusing her of calling Republicans "un-American." We'll see what happens. My guess is she did it on purpose after they found poll numbers showing that Cheney got a little boost among the Republican base for dropping the "F-Bomb."

Thursday, July 22, 2004

LTG's posting inspired me to take a break and look up some stuff on devine right of kings:

I found this great page with the followig quotation from the works of King James I of England (VI of Scotland):

"I conclude then this point touching the power of kings with this axiom of divinity, That as to dispute what God may do is blasphemy....so is it sedition in subjects to dispute what a king may do in the height of his power. But just kings will ever be willing to declare what they will do, if they will not incur the curse of God. I will not be content that my power be disputed upon; but I shall ever be willing to make the reason appear of all my doings, and rule my actions according to my laws. . . I would wish you to be careful to avoid three things in the matter of grievances:

First, that you do not meddle with the main points of government; that is my craft . . . to meddle with that were to lesson me . . . I must not be taught my office.

Secondly, I would not have you meddle with such ancient rights of mine as I have received from my predecessors . . . . All novelties are dangerous as well in a politic as in a natural body. and therefore I would be loath to be quarreled in my ancient rights and possessions, for that were to judge me unworthy of that which my predecessors had and left me.

And lastly, I pray you beware to exhibit for grievance anything that is established by a settled law, and whereunto . . . you know I will never give a plausible answer; for it is an undutiful part in subjects to press their king, wherein they know beforehand he will refuse them.

From King James I, Works, (1609)."

Incendently, most Evangelicals favor the King James version of the Bible which was commissioned and approved by the guy wrote what you just read.

Today, the House of Representatives voted to strip the federal courts of jurisdiction to hear cases relating to gay marriage. Article III of the US constitution provides that Congress may create exceptions to the SC's appellate jurisdiction. It is an open question whether Congress may also take away all jurisdiction from lower federal courts as well. This "Exception" clause has only been used once, during Reconstruction. The truly great danger is that this would set a precedent and invite a deluge of unreviewable legislation. For that reason, wiser heads have always prevailed (Republican hotheads have tried this with abortion before, but it never came close to passing).

The hypocrisy is to hear Republicans bitching about the power of "Unelected Supreme Court Judges" intruding in political decisions that "belong to the people." One Republican likened the SC to the politburo. Where was all this criticism when the SC crowned George W. Bush in December 2000? What greater intrusion in politics could there ever be?

Of course, this fits in with the Republicans' general modus operandi of late: they shamelessly break all the unwritten rules of US politics, from mid-decade redistricting, to politcally-motivated impeachment, to recess appointments for blocked federal judges, to refusing to allow votes on any federal judges, to censoring the words of congressmen from the official reports. If they are on the losing end (say Congressman Dornan accusing President Clinton of treason on the floor of the house, or the Democrats choosing to block Republican judicial nominees now), they shamelessly "remember" the rules again. And the so-called "liberal media" never calls them on it.

Tuesday, July 20, 2004

Article IV, Section 4 of the U.S. Constitution states "The United States shall guarantee to every State in the Union a Republican Form of Goverment." A comment by USWest about "too much democracy" in California (more in a minute) leads me to make a post about the varying extent of democracy in our "republican" forms of government. Until Baker v. Carr (1962), states often had senates based on counties or divisions of states that had unequal populations. That watershed case ruled that "one man, one vote" had to be the rule for both houses of state legislatures. Before then, it was heavily rural-dominated. The joke was "one cow, one vote." And the political process was 100% blocked. Earl Warren said it was his the decision he (as a former governor) was proudest of.

The same rule is, however, is barred at the federal level by Article V stating that "no state, without its consent, shall be deprived of its equal suffrage in the senate." That is the only provision of the US constitution requiring a unanimous vote of states for amendment. In the Senate, a Wyoming resident has 60 times the voting power of a California resident. It has been rightly said that the U.S. Senate is the least democratic body in the western world, excepting the House of Lords.

Even today, however, democracy among the states varies substantially. In California, I propose there is too little democracy, not too much. Specifically, California has 80 assembly members in our largest house -- making assembly districts approximately 375,000 people. In New Hampshire, by contrast, that number is 5,000. Montana is 10,000. Imagine how California democracy would be different if representation of the people were so much more direct! California also has enormous counties, the largest in the country. The members of the Los Angeles County Board of Supervisors each represent more than 2 million people. That is a larger district than even the U.S. Congress (650,000 per district as of 2000).

The separation of powers also differs. In California and New York, the legislatures meet almost full time, and contend (as does the U.S. Congress) on equal footing with the executive branch. In many other states, it is different. In Kentucky, for example, the legislature meets for 60 days every other year. For the rest of the time, the governor has unfettered discretion.

Thursday, July 15, 2004

It is worth tracing the history of this institution to understand what its relevance is today. At the convention, the majority position initially favored having the House of Representatives choose the President. The smaller states advocated having the Senate alone vote, or at least having the vote as well (diluting the democratic effect of the H of R). However, others were concerned about having a president too beholden to the legislature. Eventually, it was decided to create an institution for the sole purpose of election, with electors chosen by states as a whole rather like delegates to the constitutional ratifying conventions or the Continental Congress with which they were familiar. The compromise was that if the Electoral college gave nobody an absolute majority, the choice would devolve to the H of R. The Madison made it plain that he thought most elections would go to the H of R.

The other issue that concerned them was presumed parochialism of states. A mechanism was set up where the person who got the majority of votes would be President, and the runner-up would be VP. This double voting system was made on the theory that everyone would vote for a native son from his own state, and then also for a national figure. The national figure, the "second choice vote" would then be President because it would attract more votes. This system fell apart within 8 years. Politics became national, not parochial, and the election of 1796 had a Federalist (Adams) as Pres, and a Republican (Jefferson) as VP. In 1800, the Federalists tried to guess who the Jeffersonian Republicans were going to vote for as their second choice and give HIM their second votes, making President a man nobody wanted. The 12th amendment fixed that in 1801, creating our current system. For some reason, the office of VP was retained. It is the appendix of our system.

At least since the election of 1800, it has been widely presumed that the president would be popularly elected, and the electoral college became little more than a crude filter. Electoral college "misfires" (not reflecting the popular will) have occurred four times: 1824, 1876, 1888, 2000. Not since 1787 has anybody seriously argued that the undemocratic aspects of the electoral college are to be treasured; on the contrary, every analyst has been an apologist for the system with the same argument "it almost always works anyway, so why change it?" For more than a century, the electoral college was perceived as a nonentity.

Other issues haunt the EC process. Most people believe that the EC has a "winner take all" system built in: namely, whoever "wins" a state (plurality) gets ALL of its electoral votes. The constitution does not require this. In the 19th century, many states split their electoral votes on a proportional basis. Maine and New Jersey still do (Maine allocates by congressional district). We faced the prospect in 2000 that Gore could have lost the election if one of 'his' states (Maine) had split its electoral votes, while none of Bush's states did.

The old question returns: Cui bono?
*Popular wisdom says that small states benefit, because mathematically their votes are overweighted. But small states are rarely "in play" - or if they are the stakes are low. So their issues are thoroughly ignored. Neither political candidate will set foot in Alaska, Hawaii, Delaware, Montana, Wyoming, South Dakota, or the like. Large states get lots of attention, but only if they are "in play." The truth is that the current system favors states that are politically divided (what we saw in Florida, where 500 voters outweighed the 500,000 Gore plurality nationwide).
*Popular wisdom also says that the EC rewards candidates with broad geographic appeal, but this is again false. Nader and Perot had wide national appeal, but were not concentrated enough to win any electoral votes. George Wallace in 1968 won almost no popular votes outside the south, but many electoral votes because he was geographically concentrated. Put another way, a candidate getting 80% of all Southern votes in a direct election is not as happy as a candidate who gets 100% of all the Southern votes through the electoral college system.

There is, in my view, no justification at all for the EC today. Direct popular election (what we advocate for every other country on earth) should be the rule here. The real advantage is that each vote would count. Democrats would campaign in Alaska and Texas; Republicans in NY and Mass. "Swing states" would vanish; "swing voters" would matter.

Well, I was finally able to see Fahrenheit 9/11. I would have seen it earlier, but this movie is sold out every night in my city. I had to venture to a smaller town to get to see it. Needless to say, with so many Europeans watching this movie, I was a little worried about their reaction. I've been asked countless times "How could you elect that guy as president?" and I thought this would make people ask that question more -- instead, it did the opposite. The first 15 minutes of the movie were an enormous relief because it says to Europeans "it is debatable whether or not we actually did elect that guy."

Other random thoughts:

1. The French subtitles were good, though a little biased at times. The translation of "inauguration" was the same as the word for "enthronement".

2. I wonder how this movie will go over with the Arabic translation. Especially the line "Some call you the elite; I call you my base"*

3. I wonder what Britney Spears thinks of this movie.

4. This movie has quite an emotional impact, but I suspect it's mostly shock value. Has anyone seen this movie twice? I am curious to know if it's still as powerful, and also whether his claims seem a bit more tenuous the second time around. Please leave a comment if you have.

5. My father-in-law's first thought after leaving the movie theater? He recalled the book "Around the World in 80 Days" in which, while Phineas Fogg is flying over America, an election is being held ... with a gunfight. He wonders if things are going to get that chippy this time around. I told him they won't ... right?

Monday, July 12, 2004

My theme lately has been that the Republican party has abandoned its libertarian factions and message. Nothing shows this more clearly than the Bush administration's call for a Constitutional Amendment to prohibit homosexuals from marrying each other. Bush and his supporters are fond of claiming that they - more than their political opponents - represent true American values. But what do the poll numbers say? To find out, I checked out pollingreport.com (see link to the right for the homepage). They have a number of polls on this issue.

The latest Annenberg (U Penn) poll on the issue shows the country more or less evenly split on the Constitutional amendment idea with 48% opposing and 43% supporting. A poll based on the combined results of one Republican and one Democratic polling organization show 51% supporting an amendment and 44% opposed. OK, so between 40% and 50% of the country agrees with Bush. Good news for Bush, right?

Perhaps not. Things get complicated when you start asking the really big question: "Who cares?" The short answer is "about a third of country." Here is the long answer:

A CBS poll of registered voters asked people if they would or would not vote for a candidate who disagreed with them on the Gay marriage issue. Overall 56% of registered voters said that they WOULD vote for candidate who disagreed with them on the issue compared to 35% who would not. Among Republicans, 46% would vote for someone who disagreed with them and 44% would not. Among Democrats, 57% would vote for someone who disagreed with them and 35% would not. Among the all important independent voters, 64% would vote for someone who disagreed with them and 27% would not. The same poll also asked whether registered voters thought Gay marriage should be an issue in the 2004 Presidential election. 70% said NO.

So why is Bush making an issue of this? Independents don't seem to be sensitive to the issue. Democratic candidates seem capable of getting away with not taking a clear position (57% of Democrats will vote for a candidate who disagrees with them). And an overwhelming majority of American voters just want the issue to go away. What does Bush gain from all this? I think its not about what he would gain but rather what he would lose. 44% of Republicans say they would not vote for a candidate that disagrees with them on the Gay marriage issue. The majority of Republicans support a total ban on gay marriage. I think its fair to assume that the 44% for whom this issue is so important are part of the evangelical conservative movement. So Bush has to take their position or risk the same fate of his father when evangelical conservatives stay home. Of course, I also believe Bush is sincere in his homophobia on this issue.

I also suspect that Bush is counting on the distraction effect. Every day the media cover the Gay marriage issue as the top story is a day when anemic job situations, high gas prices or casualties in Iraq don't get covered.

Sunday, July 11, 2004

The LA Times Opinion page was full of interesting stuff today. An op-ed piece by Charlotte Allen, author of "The Human Christ: the search for the historical Jesus" demonstrates the fundamental ignorance about democracy of the Christian right.

Allen says: "Given that we've got a presidential election in November, offering voters a chance to boot out the Bible-thumping president if they wish, where's the threat to democracy?
But that's beside the point, which is: Although the Constitution explicitly requires separation of church and state, most Americans don't mind  indeed many demand  that their president not only honor religious faith, an American hallmark, but function in some sense as a religious leader."

Allen is arguing that if the majority wants it, it can't be undemocratic. More alarmingly, Allen seems to be arguing that the will of the majority should trump the Constitution! But the Constitution is there to protect people from what the Founding Father's referred to as the "tyranny of the majority." If 50% +1 wanted to take away Bill Gates' money and distribute it evenly to the rest of the population ($107 per American!) would that be "democratic?" Allen's logic would say yes. The Founding Fathers disagreed.

What is worse, I doubt that Allen's statement is an accurate statement of American opinion so really, her views would represent a tyranny of the minority, which is even worse.

The Sunday LA Times opinion page has an interesting contribution from Robert Jervis, professor of political science at Columbia U. In it, Jervis argues that groupthink did not arise within the CIA. He argues that CIA analysts are known for "intellectual combativeness" among each other. However, Jervis contends that the same is not true at the level of political appointees. The cabinet level professional politicians are vulnerable to groupthink.

Jervis even argues that the real problem was politicians pushing their ideological agendas at the expense of realistic assesments of evidence.

Friday, July 09, 2004

Stovepipes: Both Democrats and Republicans frequently declare that the problem with intelligence prior to 9/11 was “stovepiping” or the practice of only sending reports up the chain of command within the FBI, State Department, or the CIA etc without any communication about those reports between agencies. This is used as justification for the concentration of intelligence, police and anti-terror functions in one agency. But is it an accurate presentation of the problem? I say no.

I have several reasons to believe that the problem was actually that higher officials ignored reports from below not the divisions between one agency and another. In the case of the so called 20th hi-jacker who was arrested in Minnesota, the local FBI and CIA agents were in close communication and both sent reports up the chain of command within their respective agencies. But those reports were ignored by the Assistant Directors and Directors in Washington. The White House anti-terror expert, Richard Clark was in constant contact with his counterparts in the State Department, the Justice Department, the FBI (John P. O’Neill – Frontline had a great story about this guy!) and the CIA. But all of them were ignored by their respective superiors especially after the Bush administration came to town. At the local level and at the middle management level there was NO STOVEPIPE problem. The only place were such a problem existed was at the level of political appointees and that problem was made worse by the dramatic drop in top level meetings in the Bush administration.
Groupthink: It’s really a pity that the “other kind of political scientist” isn’t posting regularly on this blog because he could give a far better explanation of group think than I could. Essentially, groupthink is when a number of decision makers start to share each others assumptions – either because of bullying by a dominant personality or shared points of view. These shared assumptions on their own would not be a problem but group think kicks in when they all ignore evidence that refutes their assumptions. The US Senate Intelligence Committee specifically cites groupthink as a major cause of intelligence failures with regard to WMDs in Iraq. A common characteristic of group think is high ranking decision makers ignoring reports from below that conflict with the assumptions shared at the higher levels. This is the same problem they had pre-9/11! Note, it has nothing to do with “stove pipes.”

Intelligence was screwed up why do the details of how it was screwed up matter? If we all buy the “stove pipe” theory we’ll think the best reform is to concentrate power in one big agency like the Homeland Security Agency or the oft called for "MI-5" model of a domestic intelligence agency with police powers. But that won’t solve the problem of political appointees ignoring local and middle level officials’ reports that conflict with ideologically driven assumptions.

Thursday, July 08, 2004

The Pentagon, in response to the Supreme Court's decision that it was jailing terrorism suspects without due process, has fashioned a new process. So far nearly 600 men and boys have been held for two years without charges of any kind. Most have been subjected to the "harsh interrogation" tactics of sleep deprivation, standing for hours, strange positions, and all have been held in small open-air cages (with roofs) for more than 23 hours out of the day, in violation of all jailkeeping norms. They have no idea what they are being charged with, if anything. And they've been there for two years and have no idea when they will ever get home, or how.

It all stinks.

All 595 detainees will be given a non-lawyer "personal representative" to aid them in coming before a 3-person military tribunal. The government will have a "rebuttable presumption" in favor of all of their evidence. In other words, the 595 are presumed guilty and must prove their innocence. They must do so in without the aid of a lawyer, any witnesses, any ability to collect or present evidence, and in front of three officers who know that any "innocent" verdicts will shame their superiors.

Why no lawyer? Why no civilian judges? Why no process for witnesses?
This isn't due process at all. It's a railroad.
Worse, this violates everything America stands for.
Ask yourself this: When they put you in Gitmo, how will you get out?

The Supreme Court may have thwarted the President's attempts to establish executive power to arrest and detain indefinitely anyone (even US citizens) anywhere without charging them with a crime and without giving them access to a lawyer or a hearing in court. However, basic democratic freedoms are still under threat.

Today the House of Representatives voted on whether to repeal the part of the Patriot Act that allows Federal Authorities to monitor the reading selections and internet behavior of US citizens at libraries. A coalition of Democrats and Libertarian Republicans had accumulated a majority of the votes in favor of removing this power. However, in an unusual procedural move, the Republican House leadership held the voting open for an additional 20 minutes after the normal 15 minute time period had expired. Meanwhile the Republican leaders pressured Libertarian Republicans to change their votes. Ten Libertarians changed the votes and the bill failed 210-210. While the voting was held open, Democrats chanted "Shame Shame Shame" loudly on the floor.

I see this as more evidence that there is an opportunity for the Democratic party to set up a coalition of progressives and libertarians.

Also, this should be a clear warning to everyone that the recent Supreme Court rulings were merely one battle in the "war" to defend the basic rights of US citizens. Habeas Corpus rights have been defended but now the freedom of speech and association is under attack.

A bit of a surprising development here in the past few days -- John Edwards' name appearing in the headlines. As far as I can tell, this means either (1) The French think that the vice-president is actually someone important, like the prime minister here, or (2) they really love John Kerry and are devoting a lot of attention to him. I am hard-pressed to think of any other reasons... as you might expect, the news is of the getting-to-know-you variety; the press stresses the fact that he's a millionaire trial lawyer from the south. One also interesting tidbit they pointed out is that the two previous Massachusetts democrats to run for president also had southerners as their running mates. I guess it does balance the ticket (at least that's the idea).

Kerry didn't really surprise us with his choice, which really goes along with his theme: playing it safe. It's obvious he has chosen to not lose this campaign, rather than trying to win it. Don't expect any shockers from now until November.

Wednesday, July 07, 2004

With Kerry’s appointment of John Edwards as his running mate, there has been renewed attention, and criticism, directed at trial lawyers and especially at lawyers who help bring personal injury law suits and other so-called “frivolous” law suits. I’ll let Law Talking Guy speak to the technical definition of a frivolous law suit. My area expertise is more in line with the institutions and practices of regulatory policy. In today’s posting I intend to explain the important role that trial lawyers, especially personal injury lawyers, play in the American regulatory system. It has long been a pet peeve of mine that people accept attacks on trial lawyers on face value as if such attacks were limited in scope to the lawyers themselves. But trial lawyers and law suits against misbehaving corporations are crucial to the smooth functioning of a well regulated capitalist democracy based on the rule of law.

It is one of the great misconceptions in the common political discourse that capitalism depends on the absence of regulation. All capitalist democracies regulate the behavior of individuals and corporations. Dumping of toxic waste, reckless driving, the sale of dangerous and defective products, paying prices and delivering goods and services agreed to in contracts, the maintenance of safe working conditions, and other activities are regulated in all capitalist democracies. Indeed, if such things were not regulated at all, capitalism would eventually break down, degenerating into the kind of cleptocracies common developing countries.

How are such regulations enforced? In some countries, officers of the state monitor business activities in a constant search for misbehavior. But this approach is costly and invasive. Employing large numbers of inspectors costs enormous sums of money. Law abiding business people resent being constantly inspected. To alleviate some of these costs and to reduce the need for constant monitoring, many democracies replace a system that depends on finding every potential problem with a system that responds to complaints. In the American system, those complaints run through the judicial system in the form of law suits.

Such law suits serve several functions. First, they provide a consistent procedure to determine if there has been any violation of regulations, laws or contracts. Second, if a violation has taken place, law suits provide a means for compensating those who were wronged. Third, law suits impose penalties – in may cases the only penalties – on the corporation or person who violated the law, regulation or contract.

During the 1980s and 1990s conservative majorities (remember in the 1980s Southern conservatives were still nominally Democrats) in Congress pushed through a series of reductions in regulatory protection and enforcement. These changes have meant that law suits are an increasingly important part of regulatory policy in the United States. In essence law suits have become a kind of market based regulatory system. If people care enough to sue, it goes through the court, but minor transgressions that harm few people go unpunished. The debate now is how easy should it be to sue? If the barrier is raised too high, serious violations of important regulations will go undetected and unpunished.

Because of the vital role law suits play in ensuring a well regulated capitalist system, making it harder to sue misbehaving corporations has the effect of protecting those corporations from taking responsibility for their actions. In short, attacks on trial lawyers are little more than a cynical political strategy for placing large corporations beyond the rule of law.

The electoral maps for 1876-1888 look extremely similar to one another. Indeed, they look similar to today’s maps, but reversed: the South is Democratic, the North and far West are Republican. This is a reminder that the anomaly of Southern cohesion and racial/cultural issues has persisted since the Civil War as the most salient fact in American electoral politics.

The election of 1876 was decided by Congress in electoral vote shenanigans.
The 1888 election favored a minority candidate in the Electoral college.

However, the Mountain West had yet to join the electorate.
Six western states were admitted between 1888 and 1892: N. Dakota, S. Dakota, Montana, Idaho, Washington, and Wyoming. Two states (Idaho and N. Dakota) split their electoral votes. Some have theoried that the intention was to gerrymander the electoral college in favor of Republicans. Of the new votes, Cleveland received 1, Weaver 4, and Harrison 15 in 1892. Still, Cleveland won that year because the three-way split cost Harrison a few other key states. The mountain west states were the subject of fierce electoral competition thereafter.

The lesson of this period may be that we are not entering a new political age, as returning to an older one of intense electoral competition and not a small bit of political corruption. Red State/Blue State is not a new "armageddon" phenomenon (as Zogby puts it) but a return to more familiar patterns of partisanship.

Tuesday, July 06, 2004

Obviously, the TV news networks are engaged in 24 hour coverage of a decision they were only speculating about 24 hours ago. But there is a whole, wide world out there that they are not covering.

Has anyone noticed the absence of TV footage of US Fighter bombers bombing Falluja? The fact of the bombing is being reported but the pictures are generally absent. Back before "major combat operations" were over, TV footage of fighter planes flying over Iraqi cities was common. The so-called liberal media is avoiding showing dramatic pictures of large bombs being dropped on houses in an attempt to assassinate terrorist leader, Zarqawi.

Also, the Pentagon has advised Americans to leave Bahrain because of fears that terrorism against Americans is about to spread from Saudi Arabia to Bahrain. The so-called liberal media is not making a big deal of that either.

Just a little reminder that the rest of the world may not be watching analysis of how Edwards will effect swing voters.

You all may know that at least two of the Citizens were pulling for a Kerry-Vilsack ticket. But Kerry just announced that he has picked Edwards. Kerry hasn't found this website I guess.

Here are my views of the pros and cons of the choice:

PRO: Edwards is the kind of politician that people THINK they know even when they don't know him. Reagan, Clinton and Bush (2000) had that. That will help Kerry.
PRO: Edwards is Southern and while that may not be enough to get Southern Whites to vote for him in large numbers, it will send a "moderate" signal to independent voters in the Great Lakes region or Florida. I believe that many of the "undecided" voters were waiting to see if Kerry would pick someone like Hillary Clinton. The CNN-MSNBC-FOX crowd have encouraged this by mentioning Hillary every time they talk about VP candidates even though she was never really seriously considered. Edwards' populist tone will appeal to independent voters in swing states.

PRO: Edwards has already announced he is leaving the Senate so Democrats won't have the awkward situation imposed on them by Dukakis' running mate, Bentsen who had so much confidence in the ticket that he continued to run for his Texas Senate seat.
PRO: Edwards' record as a trial lawyer may appeal to the Nader Raider types. Edwards can realistically claim to have "stood up to corporate fat cats."
CON: Edwards record as a trial lawyer will make the ticket vulnerable to predictable accusations of being the champions of "special interests" and "frivolous law suits."

CON: Edwards may be a bit of a lightweight. After insisting he was going to pick someone who was "ready to be President," Kerry may have picked the Democratic Dan Quayle (stupid pretty boy with good hair). We'll see if Edwards can "look presidential."
CON: Kerry will have to work hard to avoid being upstaged by his running mate.

Friday, July 02, 2004

The three habeas corpus cases (Hamdi, Padilla, Rasul) decided June 30, 2004 finally put a stop to the President’s claim that he had absolute power in the “war on terror” to take away the rights of any person, even a US citizen. This will be seen, I think, as a crucial moment in the constitutional history of the country, where the Supreme Court stared down the spectre of emergency powers and perpetual war, and stood by the constitution. At the end of the day, the Court said that we are a nation of laws, not men. That is what the President and Ashcroft do not understand – we cannot rely on their goodwill to protect our liberty. I am disappointed that the Court did not say the obvious: that the President is not a man of good will, and neither is Ashcroft. Both are petty tyrants who mean to do real harm to the country’s traditions of human rights.

History’s judgment on the Court may be more favorable than the decisions themselves. A fractured court did, in fact, permit the erosion of civil liberties in two crucial areas. First, it ducked the question of whether the President could declare persons to be “enemy combatants” on his own, but affirmed that Congress could authorize such a designation. Second, it affirmed the right of “enemy combatants” to due process, BUT did not guarantee that it would be in civilian (Article III) courts. Accordingly, Atty General Ashcroft has announced that only military tribunals are open to those whom he chooses to call “enemy combatants.”

On the Padilla case, which was the most outrageous abuse of power, the Court essentially punted. The Court’s 5-4 opinion is a bit comical, or tragi-comical. In it, the Court said that there were two questions: (1) was the petition filed in the right place, and (2) did it have merit. Because they decided the first question in the negative, the Court said, they declined to reach the merits. The comedy is that this shows that the Court would have supported the petition. After all, the Court could have just as easily approached the questions in reverse order and said that because enemy combatants have no right to petition, it didn’t matter where it was filed. So, still a victory for habeas corpus. Bush may have to prove that Padilla did something after all.

The really sad thing was the opinion by Justice Thomas. Thomas simply said that the court had no business getting involved in military affairs. He ignored the fact that the President has tried to declare the whole country a battlefield on which he has unlimited power. That’s just tragic.

Overall, the really disappointing thing is that a fractured court did not do what was done during the Warren Court: get together on unanimous language supporting human rights. We need this judicial leadership more than ever now. As Robespierre observed in 1792: “These are times of great events, and little men.”

Thursday, July 01, 2004

Some time ago, Law Talking Guy posted his thoughts regarding the Bush Administration’s attempt enlist the Pope’s support against Democrat, and Roman Catholic, John Kerry. Bush asked a Vatican official to go after Kerry on the abortion issue. The Vatican response was to leak the story and deny any intention of getting involved in the American election.

Now the Washington Times is reporting that Marc Balestrieri, a 33 year old canon lawyer and assistant judge with the Los Angeles Archdiocese, has officially accused, or “denounced,” Kerry of heresy before the Boston Archdiocese. Balestieri contends that Kerry committed heresy by receiving communion while opposing laws that restrict women’s access to abortions. The Boston Archdiocese has no comment. Whether the case progresses or not is up to the Archbishop of Boston.

“'By spreading heresy, he is endangering not just mine but every Catholic’s possession of the faith,…I am inviting all baptized Catholics who feel injured by Kerry to join the suit as third parties.’” Balestieri said in the Washington Times article.

I think this quotation gets to the heart of how religious conservatives are moving decisively towards an ideology based on theocracy. It isn’t enough to be allowed to worship as one wishes. Religious conservatives now claim that any deviation from traditionalist beliefs is a threat to their freedom of religion.

This faction is now the dominant faction of the Republican party. Any question that there is no difference between moderate Democrats and Republicans should be answered by these kinds of incidents.